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JUDGE LOWELL 



AND THE 



Massachusetts Declaration of Rights. 



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JUDGE LOWELL 



AND THE 



f Massachusetts Declaration of Rights 



A PAPER READ BEFORE THE 



MASSACHUSETTS HISTORICAL SOCIETY 



April 16, 1874 



By CHARLES DEANE 



>C^'< \ o 



BOSTON 

PRESS OF JOHN WILSON AND SON 

1874 



JUDGE LOWELL AND THE MASSACHUSETTS 
DECLARATION OF EIGHTS. 



There has been for some years a tradition in the family of Judge 
John Lowell (who was born in 1743 and died in 1802) that he, as a 
member of the Convention which framed the Constitution of Massa- 
chusetts in r77*J-80, introduced tlie first article, or the first clause in 
the first article, of the Declaration of Rights ; and that its insertion 
Avas proposed by him for the express purpose of abolishing slavery in 
this (State. The statement has found its way into some of our biogra- 
phical dictionaries ; but it appears, perhaps in its most authentic form, 
in a letter from the Rev. Charles Lowell, D.D., a son of Judge Lowell, 
written in 185G. 

"My father," he ■writes, " introduced into the Bill of Rights the clause 
by which slavery was abolished in Massachusetts. You will find, by referring 
to the Proceeduigs of the Convention for framing the Constitution of our 
State, and to Eliot's New England Biographical Dictionary, that he Avas a 
member of the Convention and of the Committee for drafting the plan, &c., 
and that he suggested and urged on the Committee the introduction of the 
chiuse, taken from the Declaration of Independence a little varied, which 
virtually put an end to slavery here, as our courts decided, as the one from 
wliich it was taken ought to have put an end to slavery in the United 
States. This he repeatedly and fully .-stated to his family and friends. . . . 
In regard to the clause in the Bill of Rights, my father advocated its adop- 
tion in the Convention, and when it was adopted exclaimed : ' Now iliere is no 
longer slavery in Massachusetts ; it is abolished, and I icill render my ser- 
vices as a lawyer gratis to any slave suing fo)' his freedom, if it is xoitliheld 
from him,'' or words to that effect." * 

* Letter to Charles E. Stevens, author of "Anthony Burns, A History," 
Boston, 1856, pp. 2c54, 235. 



It certainly M^ould be consonant to my own feelings to award such 
an honor to so distinguished a citizen as was Judge Lowell ; but I can- 
not forbear, in justice to history, to express my belief that this tradition 
has no foundation in fact, and 1 will give my reasons for this opinion. 
' The Convention for framing the Constitution of Massachusetts met 
at Cambridge, on the first day of September, 1779. On the 4th of that 
month, a committee of tltivty, of which the Hon. James Bowdoin was 
chairman, was chosen '"to prepare a frame of a Constitution and Dec- 
laration of Rights," to be submitted to the Convention. Four days 
afterward the Convention adjourned, to meet again on the 28ih of the 
following month. During the recess the committee entered upon the 
important work assigned to them ; and, when the C!onveiitiou again 
met, submitted their report in a printed form, copies of which were 
distributed among the members. 

The journal or record of this committee of thirty, if any was kept 
by them, is not known to be in existence ; but we know, from other 
sources, that the committee delegated to a sub-committee of three the 
duty of preparing a draft of a Constitution. The three were Mr. 
Bowdoin, Samuel Adams, and Jolm Adams. By this sub-committee 
the task was intrusted to John Adams alone, who performed it. To 
them the draft was submitted ; and they accepted it, with only one 
trifling erasure. It was then reported to the Grand Committee, who 
made some alterations. The preparation of a Declaration of Rights 
was intrusted by the general committee to Mr. Adams alone, and it 
was reported by him. "The article respecting religion," the third 
article, he says, "was the only article I omitted to draw."* 



* I am indebted to the Hon. Charles Francis Adams for the following ex- 
tract of an inipublislied letter from John Adams to Judge W. D. Williamson, 
dated 25 Feb., 1812: — 

" In 177'J the General Court recommended to all the towns to choose repre- 
sentatives to meet at Cambridge, witii full powers to agree ujion a Constitution 
or frame of government to be laid before the towns lor their ajjprobation or 
rejection. 

" The Convention met in August [September 1], in the Congregational Church 
in Cambridge, and, after some weeks [days] of (leliberation and discussion, ap- 
j)ointed a large conniiittee of tliirty members to sit in Boston and i)repare a 
j)lan. This fommitlee, after some weeks of debate, appointed a sub-eounnittee 
of tin-ee members to nuike a draft. The three were Mr. Bowdoin, Mr. S. Adams, 
and myself. When we met, Mr. Bowdoin and I\Ir. S. Adams insisted that I 
sliould i)repare a ]>Ian in writing, which 1 did. When I laid it before them, 
after deiiherating uixm it, tiiey agreed to it, exceiiting only to one line, of no 
con.sequence, which 1 !<truck out. We reported it to the conunitlce of tliirty, 
where it underwent a thorough investigation. They struck out two tilings, to 
my sorrow. Que was an miqualified negative to the governor. Another was 
the power to the governor to ajipoint all militia otKcers, trom tlie higliest general 
to the lowest ensign. The article relative to religion was not drawn by me, nor 
by tlie sub-committee. Tiie Declaration of Kights was drawn by me, who was 



To what extent the draft of the Declaration and Frame of Govern- 
ment were modified by the Grand Committee, before they were sub-, 
mitted to the Convention, we have no means at the present day of 
determining. Tluit suggestions, more or less important, were made by 
some of the distinguished men who were members of that committee, is 
certain ; but it is equally certain that the Report to the Convention 
was substantially as it came from the hands of Mr. Adams. (See 
Works of John Adams, iv. 216; vi. 463, 465; ix. 507, 618, 623; 
Proceedings of Mass. Hist. Soc. for November, 1860, pp. 87-92.) 

The first article in the Declaration of Rights, which, it is said, Mr, 
Lowell caused to be inserted, is as follows : — 

" All men are born free and equal, and have certain natural, essential, 
and uiialifiiabk' rights ; among which may be reckoned the right of enjoying 
and defending their lives and liberties; that of acquiring, possessing, and 
protecting property ; in fine, that of seeking and obtaining their safety and 
happiness." 

Now it is very well known to the student of our history, that many of 
the fundamental principles of the Massachusetts Declaration of Riglits, 
and much of its language, were taken from the Virginia Declaration, 
as drawn up by that sterling patriot, George Mason, and adopted by 
the Convention at Williamsburgh, on the 12th of June, 1776. Or, 
perhaps, it would be more accurate to say that the Massachusetts Dec- 
laration corresponds more nearly, in the provisions common to both, to 
the language of the Pennsylvania Declaration adopted a few months 
after that of Virginia, the latter being, however, the common source. 

appointed alone by the Grand Committee to draw it up. The article respecting 
religion, as I said before, was the only article which I omitted to draw. I could 
not satisfy my own judgment with any article that I thought would be accept- 
able, and, further, [I thought] that some of tlie clergy or older and graver 
persons tlian myself would lie more likely to hit the taste of the public." 

Mr. Adams continued to attend the meetings of the Convention till two da3's 
before he embarked for Europe, on the 18th of November, 1779. On the 4th 
of November, he writes thus from Braintree to B. Rush : — 

" Your favors of Oct. 12tli and I'Jth are before me. I should not have left 
the first unanswered seven days, if it had not been for my new trade of a Con- 
stitution monger. 1 enclose a pamphlet as my apology. It is only a report of 
a committee ; and will be greatly altered, no doubt." — Works of John Adams, ix. 
507. 

In a letter to Edmund Jennings, dated 7th June, 1780, immediatelj' after the 
Constitution had been ratified by the people, he says : — 

" I was chosen by my native town into the Convention two or three days 
after my arrival [from Europe]. 1 was, by the Convention, put upon tlie 
committee ; by the committee, upon the sub-committee ; so that I had the honor 
to be principal engineer. The committee made some alterations, as, I am in- 
formed, the Convention have made a few others, in the report; but the frame 
and substance is preserved." — Iliid., iv. 216. 

In a letter to John Taylor written in 1814, Mr. Adams speaks of "this con- 
stitution, which existed in my haudtcritiny," &c. — Ibid., vi. 465. 



No man was more familiar Avilli these state papers than was Mr. 
Adams. He made them tlie subject of discussion with M. Marbois on 
their voyage from Europe to tliis country in 1779, from which he 
arrived just in time to be chosen a delegate to the Convention for fram- 
ing the Constitution of Massachusetts, and of course he had them be- 
fore him while employed upon the important duty assigned to him. 
The curious reader may be interested to see how nearly the first 
article of the Massachusetts declaration, given above, corresponds to 
the first article from the Virginia Declaration, which follows: — 

"That all men are by nature equally free and independent, and have 
certain inlierent rights, of which, when they enter into a state of society, 
they cannot, by any coinpatt, deprive or divest their posterity ; namely, the 
enjoyment of life and lil)erty, with the means of ac<piiring and possessing 
projierty, and pursuing and obtaining happiness and safety." 

That of Pennsylvania is as follows : — 

" That all men are born erpially free and independcmt, and have certain 
natural, inherent, and unalienable rights, amongst which are the enjoying 
and dc'lending life an^l liberty, accpiiring, possessii)g, and protecting prop- 
erty, and pursuing and obtaining happiness and satety." 

With these facts before us, it seems altogether improliable that John 
Adams, while drawing so largely from the Virginia and Peimsylvauia 
Declarations of Rights, and fi'om the latter very much in the order in 
which the several articles lie in that state paper,* should have omitted 
the first and most important article, containing principles and declara- 
tions so accordant to his own feelings and convictions ; and have left 
that article, or the first clause in that article, to be prefixed by the 
Committee of Thirty. For it is on this violent supposition alone that 
it becomes jjossible for us to believe that the article referred to, or the 
first clause in it, could have been introduced on motion of Mr. Lowell 
in the Grand Conmaittee, of which he was a member. Besides, we 
have the statement of John Adams himself already cited, that the 
article respecting religion was the only article which he omitted to 
draw. The reader will consult in vain the Proceedings or Journal of 
the Convention, published by the State in 1832, or Eliot's Biographical 
Dictionary, cited as authority by Dr. Lowell, for any evidence that 
John Lowell "suggested and urged on the committee the introduction 
of the clause" referred to. Of course, the Journal of the Convention 
would not record what passed in the committee; and it is ecpially 
silent as to any exhibitions of exultation on the passage of tiiis article 
in the Convention.! 

* Tlie articles in the Massachusetts Declaration of Kiglits number tliirty, 
while those in tlic orijiinal Ponnsvlvania Declaration numbered sixteen. Num- 
bers 1, 2, 4, T), 7, 8, ".), 10, 12, 14, i.',, Hi, 17, and 18 of the I'oruicr, eorresijond to 
numbers 1-14 of the latter. The language is otten ilitlerent, some of the articles 
in each i)a])er beinji.- more amplitieil than the corres])on(lin.t; artieles in the other. 

t As 1 liuve said above, the Convention reassembled to hear and act upon the 



The assertions of natural right embodied in these several Declara- 
tions were familiar to the public mind of Massachusetts at that period. 
The Declaration of Independence of 1776, issuing from a committee of 
which Mr. Adams was a member, followed iu a few weeks the Decla- 
ration of Virginia referred to above ; while that of Pennsylvania soon 
succeeded. The same familiar principles are afterwards found em- 
bodied in the report of the committee of a Convention which met at 
Ipswich, in this State, in May, 1778, in which the defects of a Consti- 
tution recently rejected by the people of Massachusetts were ably 
exposed, — a report said to have been drawn up by Theophilus Par- 
sons, a legal luminary just then rising into notice. " All men," he says, 
" are born equally free ; the rights they possess at their births are 
equal, and of the same kind. Some of tliose rights are alienable, and 
may be parted with for an equivalent. Others are unalienable and in- 
herent, and of that importance that no equivalent can be received in 
exchange," &e. (See Essex Result, pp. 12, 13.) 

Judge Lowell's sympathies were undoubtedly in favor of the freedom 
of the colored race. In answer to Dr. Belknap's inquiries, in 1795, 
relating to slavery in Massachusetts, Judge Sullivan, under date of 
April 9th, writes : " The first causes brought by negroes against their 
masters were conducted by Judge Lowell, who can give you an ac- 
count of that business." (J/*S'. letter.) These well-known views and 
benevolent exertions of Judge Lowell had no doubt left their impres- 
sion on the minds of his family. 

Judge Sullivan does not say whether these causes were brought be- 
fore or after the adoption of the Constitution. That Dr. Belknap did 
consult Judge Lowell on the occasion referred to is probable. No 
letter of his exists, among others now extant, written in answer to Dr. 
Belknap's inquiries ; but Judge Lowell's name is placed in the margin 

report of their committee on the 28th October. On the 29tli, in the afternoon, the 
Journal proceeds to say : . . . " Tlie Declaration of Kiglits was then read ; and, 
on a motion made and seconded, the same was voted to be taken up by propo- 
sitions. Tlie preamble and the 1st article, after sundry amendments, being 
accepted," &c. Now, having tlie Report of the Committee before us, and the 
Constitution as adopted, we are able to see what amendments, if any, were 
made in the tirst article. Tlie only amendment was the striking out the word 
their in the phrase "protecting their property." I will add, though all this has 
no immediate connection with the purpose of tliis communication, that in the 
text of tiie printed Report of the Committee the first clause of the Declaration 
reads, "All men are born equally free and independent"; but in a table of 
Errata on tlie last page it is corrected to read, " All men are born free and 
equal." This correction should not be regarded as an amendment made by the 
Convention ; yet in reprinting this report in 1832, the Committee of the Legisla- 
ture disregarded the wiiole of the Errata, which contained other corrections, 
more particularly in the last clause of the preamble ; and the reader of that 
volume would necessarily conclude that the changes suggested by the Errata 
formed part of the amendments by the Convention. See Proceedings of this 
Society for November, 1860, pp. 88-92. 



of the original manuscript of Dr, Belknap's reply to Judge Tucker (as 
are other names for a similar purpose) as authority for a statement re- 
lating to trials for freedom before the judicial courts, prior to the Revo- 
lution, — a statement incorporated with others relating to the same 
subject into one paragraph, as printed on pages 202-203 of Vol. IV. 
Mass. Hist. Coll. 

The form used by JMr. Jefferson, in the Declai-ation of Independence, 
is more simple, but equally expressive : " All men are created equal." 

The doctrine taught in tliese several forms of expression was, as I 
have said, familiar to the fathers of the Eevolutiouary era ; indeed, it 
can be traced to a much earlier period. Not to refer to Locke and 
Sidney, I may mention that Sir Robert Filmer, who doubted its sound- 
ness in his " Patriarcha," published in 1 680, traces it to Bellarmine, 
who was born \\\ Tuscany in 1542. On page 11 of that volume, Fil- 
mer quotes that writer, in maintaining the " natural liberty of the peo- 
ple," as saying that it is evident from scripture that God hath given or 
ordained po?re?' ; "but God hath given it to no particular person, be- 
cause hy nature all men are equal ; therefore he hath given power to 
the people or multitude." * 

Whatever may have been the significance of the first clause of the 
article under consideration to the minds of Mr. Mason and Mr. Adams, 
it is interesting to notice how widely different has been its interpreta- 
tion in the States represented by these eminently patriotic citizens. 
In 1783 it was held by the Supreme Judicial Court of Massachusetts 
that the clause in question abolished slavery within this State. The 
first section in the Virginia Declaration of Rights, which is a part 
of her Constitution, stands to da}^, I believe, substantially as it came 
from the hands of George Mason, f 

Slavery was abolished in Massachusetts by force of public opinion 
manifesting itself through her judicial courts. It was provisionally 
abolished in Virginia and her sister slave-states more than three-quarters 
of a century later, only by force of the public opinion of the nation, ex- 
])ressed through the supreme magistrate as the commander-in-chief of 
the army, during the rebellion of the States in which it existed ; and 
consummated by an amendment of the Constitution of the United 
States. 

* See also rrofcssor \Vaslil)urn's " Orip:in and Sources of the Bill of Rights " 
of Massachusetts, in Proc'ee(lin<;s for June, 1805. 

t " Tlie state of New IIamj)sliire established their constitution in 178l> ; and 
in the first article of the Declaration of Rights it is asserted that ' all men are 
horn equally free and independent.' The eonstnietion there put on this clause 
is that all who liave been horn since the constitution are free, but that tliose 
who were in slavery before are not liberated by it. I5y reason of this construc- 
tion (whicli, by tlie wa.y, 1 do not intend to vindicate), the blacks in tliat state 
are in tlie late census distinjiuishcd into free and slaves, there being no hulians 
residing witliin tiiose limits." (Dr. Belknap to Judge Tucker in IT'Jo, in 
1 Mass. Hist. Coll. IV. 2Ui.) 



To this brief statement of facts the following supplementary obser- 
vations may be added : — 

John Lowell was a sagacious lawyer. If he had intended to 
introduce a clause into the Constitution of Massachusetts to etFect the 
abolition of slavery, would he have chosen for that purpose a form of 
language which for three years had existed in the constitutions of both 
Virginia and Pennsylvania, and had in each failed to accomplish the 
purpose which it is said he wished to accomplish here ? * On the con- 
trary, would he not have avoided such language ; or rather would he 
not have added to it some positive declaration, such as that " neither 
slavery nor involuntary servitude, except as a punishment for crimes, 
&c., shall exist in this State " ? He could have had no ground for 
predicting a judicial interpretation of the familiar clause adopted that 
would operate to abolish slavery here. Indeed, Judge James Win- 
throp, one of the founders of this Society, in answer to the queries of 
Dr. Belknap on this subject, in 1795, says of this decision, '' By a mis- 
construction of our State Constitution, which declares that all men by 
nature are free and equal, a number of citizens have been deprived of 
property formerly acquired under the protection of law." — Ms. letter. 

It may be added that the first article in the Declaration of Rights 
in the Constitution of Vermont, established in 1777, asserts "that all 
naen.are born equally free and independent, and have certain natural, 
inherent, and unalienable rights, amongst which are the enjoying and 
defending life and liberty," &c., the exact language of the Pennsyl- 
vania Declaration. But this language was not used with the intention 
of abolishing slavery in Vermont, for immediately following we read : 
" Therefore, no male person, born in this country, or brought from over 
sea, ought to be holden by law to serve any person as a servant, slave, 
or apprentice, after he arrives at the age of twenty-one years, nor 
female in like manner, after she arrives at the age of eighteen years, 
unless they are bound by their own consent, after they arrive to such 
age, or bound by law for the payment of debts, damages, fines, costs, or 
the like." — Vermont State Papers, p. 241. 

This was two years before the convention met to frame a constitu- 
tion for Massachusetts. 

* Judge Tucker, in A Dissertation on Slavery, in Virginia, published in 1796, 
the year after liis correspondence with Dr. Belknap, already referred to, took 
place, says : " The Koman lawyers look upon those only properly as persons who 
are yree, putting slaves into the rank of (joods and chattels; and the policy of our 
legislature, as well as the practice of slaveholders in America in general, seems 
conformable to that idea." — p. 49. 



rAI. JAN. 21. 1808 



LIBRftRY OF CONGRESS 



011 898 471 7 



